PROHIBITING SAME-SEX MARRIAGES IN THE U.S.:

FEDERAL & STATE "DOMA" LEGISLATION

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Background:

During the 1990s, legal efforts were taken towards legalized same-sex marriage in Hawaii, Vermont,  Alaska, and other states. Court decisions favoring equal rights for gays and lesbians were overturned by state constitutional amendments in Hawaii and Alaska. The Vermont Supreme Court ordered the state legislature to either:

The Vermont legislature chose the second route, creating a system of civil unions.

Since that time:

Court and legislative activity in various states:

Article IV, Section 1 of the US Constitution states that "full faith and credit shall be given in each state to the...judicial proceedings of every other state." Thus, if one state legalizes same-sex marriages, and a couple is married in that state, then the remaining 49 states might be required to recognize the marriage. However, if a state passes a law expressly prohibiting same-sex marriages before they become available somewhere, then some legal authorities believe that they would not be compelled to recognize the marriage. These beliefs have not been tested in the courts. There seems to be a growing consensus that such laws are unconstitutional.

Starting in 1995, bills were written to create "Defense of Marriage Acts" (DOMA). Their intent would be to outlaw same-sex marriages and to refuse to recognize such marriages recognized in other states. Many have been passed and signed into law. Updated lists are available online. _1,2,3

During the first six years of DOMA legislation, from 1995 to 2000, the following states passed laws, modified their constitution, or adopted executive orders to ban same-sex marriage:

By 2004-FEB-12, a total of:

The Traditional Values Coalition maintains a list of "Marriage Protection Amendments" at:

Ed Fallon delivered a moving speech in the Iowa House against the DOMA bill in his state.

Notwithstanding the "full faith and credit" clause, it is unlikely that many states would willingly recognize same-sex marriages contracted in other states, unless ordered to by the courts. Up until 1967 when the remaining 15 state miscegenation laws were declared unconstitutional by the US Supreme Court, many states refused to recognize any inter-racial marriages that were made in other states. Couples had to fight for their rights on a state-by-state basis. This same phenomenon has occurred over same-sex marriages, since Massachusetts legalized them. None of the challenges have been successful to date.

There are three reasons why many of the DOMA bills may be partly or completely ineffectual:

U.S. Federal Government "DOMA" Law

A "Defense of Marriage Act (DOMA)" was written by Representative Steve Largent (R-OK). It defines the term marriage within Federal law as meaning "only a legal union between one man and one woman as husband and wife." The act also excuses each state from having to follow the "full faith and credit" clause of the US constitution; this would allow a state to refuse to recognize a marriage made in another state if the spouses were of the same gender. A similar bill, S. 1740, was introduced to the Senate on 1996-MAY-8 by Senator Don Nickles (OK).

It is ironic that one of the main supporters of the bill, Senator Phil Gramm (R-TX), would have been prohibited from marrying his wife a few decades ago by almost identical legislation. His wife is partly of Korean ancestry; Phil Gramm is Caucasian. As described above, inter-racial marriages were prohibited in many states of the US as late as 1967.

Senator Jesse Helms (NC) warned that "the homosexual lobby," was trying to "force their agenda upon the vast majority of Americans" and was "willing to tear apart America's moral fabric." This is factually incorrect. The major gay and lesbian organizations had originally felt that the right to enter into same-sex marriages should not be pursued until after other rights (e.g. employment, accommodation) had been obtained. The Hawai'ian group fought the matter through the courts did so with little financial support from mainland homosexual organizations, and ended up deeply in debt.

This act is a unique intrusion by the federal government into an area that had always been under the control of the individual states. The Anchorage News (Reference 1) commented "scholars also questioned the federal government's authority under the Constitution to pick and choose which state laws must be honored by other states. If Congress can nullify one state's marriage laws, the scholars pointed out, it's presumably free to void a state's tort laws, or product liability laws, or any other laws with interstate implications. It's not clear whether any law in any state would be safe from this kind of congressional nullification."

DOMA could also legalize bigamy in the United States. Assuming that one state authorized same-sex marriages, then a lesbian and bisexual woman could go to that state and be married. They could return to the mainland, where the bisexual woman would be considered single, and free to marry a man.

Congressman John Lewis (D, GA) delivered a moving speech in opposition to DOMA.

The bill passed the House with an overwhelming majority (342-67) in 1996-JUL. It passed the Senate 85 to 14 on 1996-SEP-10. It was signed into law by President Clinton in 1996-SEP. It he had not signed it, his veto would probably have been overturned by Congress. 

Many, perhaps most, constitutional experts believe that the law could not survive a court challenge before the U.S. Supreme Court. Before a court case can be initiated, gays and lesbians had to achieve equal marriage rights in at least one state. This first happened in the state of Massachusetts where the Supreme Judicial Court ordered that marriage licenses be sold to same-sex couples starting in 2004-MAY-20. A couple married there in late May, returned to their home in Minnesota, and launched a lawsuit with the U.S. District Court to force the IRS to change their tax return to reflect their new status: "married, filing jointly."  This makes no economic sense, because if they are recognized as married, they will have to pay the "marriage penalty;" they would have to pay increased income taxes. However, they appear to have a second goal in mind: to appeal the case up to the U.S. Supreme Court level and try to get the federal DOMA law declared unconstitutional. If that law falls, then the state DOMA laws would probably suffer the same fate. ₄

However, as noted above in the section about State DOMA laws, the federal DOMA legislation might be totally ineffectual at stopping states from being forced to recognize civil unions contracted in other states.

2003-SEP: Federal DOMA revisited:

Senator John Cornyn (R-TX) opened a Senate hearing on 2003-SEP-4 to review the federal DOMA law. In the seven years since DOMA was written, there has been a growing consensus among social and religious conservatives that the law may eventually be declared unconstitutional. It appears to conflict with the Article IV, Section 1 of the US Constitution -- the "full faith and credit" clause. The only long-term approach to banning same-sex marriage may be to modify the U.S. Constitution itself. A Federal Marriage Amendment has been proposed that would restrict marriage to a union of one man and one woman. The current wording of the proposed amendment states: Marriage in the United States shall consist only of the union of a man and a woman. "Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

However, even if this amendment is passed by the Senate, House, and a sufficient number of states, it will not necessarily be permanent. Polls indicate that youth are far more accepting of same-sex marriage than are the elderly. When young adults mature and enter positions of power, they might well initiate a repeal of the Amendment, thus permitting same-sex marriage.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. A listing of activity on a state by state basis is available at: http://www.ftm.org/ It does not seem to have been updated recently.
2. A frequently updated activity list is at the Lambda Legal Defense and Education Fund at:  http://www.lambdalegal.org/ 
3. Sonja Swiatkiewicz, "Connecticut Attempts to Protect Marriage," Focus on the Family, 2003-FEB-21, at: http://www.family.org/
4. Terry Phillips, "Same-sex couples take on the IRS," Family News in Focus, 2004-MAY-26, at: http://www.family.org/
5. The text of the U.S. Supreme Court 1996 ruling in "Romer v. Evans," is at: http://caselaw.lp.findlaw.com/
6. The text of the case Citizens for Equal Protection, Nebraska Advocates for Justice and Equality and ACLU Nebraska v. Jon Bruning and Mochael Johanns is at: http://www.lambdalegal.org/
7. "50-state survey of marriage protection amendments," Traditional Values Coalition, 2005-APR, at: http://www.traditionalvalues.org/ This is a PDF file. You may require software to read it. Software can be obtained free from: